Mistakes Lawyers Make in Mediation

  1. Mediating before the case is ripe for settlement – when lawyers know only what their own clients have told them.

  2. Failing to regard the mediation as a case dispositive proceeding and to prepare accordingly.

  3. Negotiating against an “empty chair”, i.e., allowing an opposing party not to attend or to attend by phone, unless absolutely necessary.

  4. Negotiating against an “empty suit”, i.e., an opposing party representative who lacks authority to make sufficient concessions to reach a settlement.

  5. Selecting the wrong client representative – too little authority, too much emotional volatility or culpable personal involvement.

  6. Failing to secure the participation or availability of a non-party necessary to reach a settlement, such as an insurance adjuster, guarantor, indemnitor, mentor, spouse or significant other.

  7. Treating the mediator as an adversary rather than as a helpful resource.

  8. Sending the wrong lawyer – if you intend to make peace, don’t send Mongo!

  9. Waiving opening statement – this is your chance to speak directly to the opposing decision maker and gives all parties the opportunity to vent and to have their “day in court”.

  10. Becoming impatient – mediation is a process; a dance. Don’t be put off by an “insulting” first offer. The process has to start somewhere.

  11. Being the first to quit – even if you cannot reach a settlement, try to negotiate long enough to determine the other side’s bottom line.

  12. Coming to the mediation to try your case before the mediator rather than to negotiate a settlement with the other side.

  13. Believing you are there to punish or vanquish the other side rather than to settle the case by negotiating a mutually acceptable agreement.

  14. Falling in love with your own valuation of your case – you will often get it wrong, and even when you do get it right, the trial judge, the jury or an appellate court may get it wrong.

  15. Making your best offer your first offer – no one ever believes you.

  16. Believing that bargaining must be symmetrical, i.e., that the parties should make equal moves in each round of bargaining or overall – they rarely do.

  17. Bargaining reactively and emotionally rather than pursuant to a well thought out negotiating plan.
  18. “Yo-yoing”, i.e., randomly alternating large and small positional moves.

  19. Proposing a link or bracket move, e.g., “We’ll come up to $X, if you’ll come down to $Y”, prematurely when the bargaining gap is still too wide.

  20. Failing to advise the mediator and the other side in the late rounds of bargaining that you are nearing your final offer – by tapering your concessions and by instructing the mediator to tell them you have only a little negotiating room left.

  21. Offering to split the difference – this nearly always elicits a counteroffer to split the remaining difference.

  22. Failing to look at the case from the other side’s point of view – what do they need to settle the case; how will they interpret your offers?

  23. Failing to recognize the possibility that there may have been criminal conduct on the part of your client that might be exposed should the case go to trial.

  24. Being gratuitously nasty – needlessly raising the emotional temperature.

  25. Making backward moves – these are almost always counterproductive.

  26. Presenting ultimatums – these paint you into a corner, so use them sparingly.

  27. Failing to provide credible documentary evidence of a defendant’s uncollectibility.

  28. Suggesting in the presence of an adverse party that its counsel reduce their fees in aid of settlement.

  29. Failing to draft a proposed settlement agreement and bring it to the mediation.

  30. Failing to sign a binding agreement at the mediation table as soon as the parties reach an agreement – leave no opportunity for buyer’s remorse to set in.

  31. Failing to have a transactional lawyer available to assist in negotiating and drafting a complex settlement agreement and to provide tax advice when needed.

  32. Failing to include in the settlement agreement, where appropriate, a disclaimer of any admission or inference of a settling party’s negligence, liability, fault, wrongdoing or illegal conduct.

  33. Failing to include in the settlement agreement, where appropriate, provisions concerning confidentiality and non-disparagement.

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Bankruptcy Mediation is a treatise published by the American Bankruptcy Institute